A.M.R.I. v. K.E.R., (2011) 278 O.A.C. 166 (CA)

• Judge: Cronk, Gillese and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 02, 2011
• Jurisdiction: Ontario
• Citations: (2011), 278 O.A.C. 166 (CA);2011 ONCA 417

A.M.R.I. v. K.E.R. (2011), 278 O.A.C. 166 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JN.003

A.M.R.I. (applicant/respondent on appeal) v. K.E.R. (respondent/appellant on appeal)

(C52822; 2011 ONCA 417)

Indexed As: A.M.R.I. v. K.E.R.

Ontario Court of Appeal

Cronk, Gillese and MacFarland, JJ.A.

June 2, 2011.

Summary:

In December 2008, a 12 year old girl travelled from Cancun, Mexico, to Toronto, Ontario, accompanied by her maternal grandmother and uncle, for a visit with her father and paternal aunt. The girl's mother, who lived in Cancun, had legal custody of the girl, while the father had access rights. The mother consented to the visit. During the visit, the grandmother and then the girl disclosed that the mother had abused the girl. The girl did not return to Mexico as arranged, but remained in Toronto with her father, her paternal aunt and her aunt's same-sex spouse (the aunts). In May 2010, the girl's application under the Immigration and Refugee Protection Act (IRPA) for refugee status was granted by reason of her mother's abuse. Shortly thereafter, the father was denied refugee status in Canada and moved to Norway. After the girl had been living in Toronto with her aunts for about 18 months, the mother brought a Hague Convention application in Ontario for an order compelling her return to Mexico. The father and paternal aunt were served with the application, although the father was the only named respondent. The aunts, who had commenced a custody application, moved for an order adding them as parties and appointing counsel for the girl or an amicus curiae in the Hague Convention application. Their motion was denied. Before the time for the father's response to the Hague Convention application had expired, and without notice to the aunts or the girl, the mother arranged for a hearing date. The father claimed that he did not receive timely notice of the hearing date. The hearing proceeded uncontested, without the father's, aunts' or girl's participation. The application judge held that the girl, then almost 14 years old, was being wrongfully retained in Ontario and ordered her summary and immediate return to Mexico. She was removed from her school with police assistance, placed in her mother's care, and flown to Mexico despite her protests and without notice to her father or aunts. Although she informed the police and others present that she was a Convention refugee, she was denied permission to return home to retrieve her refugee papers. She was not allowed to communicate with anyone in any way. The father appealed the Hague application judge's decision. In addition, by Notice of Constitutional Question, he challenged the constitutional validity of s. 46 of the Children's Law Reform Act (CLRA), which incorporated the Hague Convention into Ontario's domestic law, on the ground that it conflicted with Canada's obligations to refugees under s. 115 of the IRPA. In the same notice, he also raised various Charter-based complaints. Several organizations were given party or intervener status.

The Ontario Court of Appeal allowed the appeal. The court held, inter alia, that s. 46 of the CLRA was constitutionally valid; but the girl's s. 7 Charter rights and right to procedural fairness had been breached. The court ordered that a new Hague Convention hearing be held. The court ordered that, at the new hearing: (1) the record before the Court of Appeal, including the fresh evidence received on consent, be placed before the Hague application judge; (2) the child be provided with a copy of all materials filed with the Hague application judge; (3) the child be represented by the Office of the Children's Lawyer, or such other counsel as she might determine; (4) the child be given an opportunity to present evidence, including in response to the mother's evidence; and (5) proper and timely notice of the return date for the new hearing be provided to the father, child and aunts. Where it appeared that the child had returned to Toronto in order to participate in the new hearing and that her care and supervision pending that hearing had been settled by court order, further direction from the Court of Appeal regarding her return from Mexico was unnecessary.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise. The court ordered no costs of the appeal,

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See fourth Aliens - Topic 4 ].

Aliens - Topic 4

Definitions and general principles - Children - A Hague application judge ordered a child's return to Mexico to be with her mother, her custodial parent - The child, now almost 14 years old, had been in Canada for 20 months and had previously been granted refugee status under the Immigration and Refugee Protection Act (IRPA) by reason of her mother's abuse - The father appealed the Hague application judge's decision - In addition, by Notice of Constitutional Question, he challenged the constitutional validity of s. 46 of the Children's Law Reform Act, which incorporated the Hague Convention into Ontario's domestic law, on the ground that it conflicted with Canada's non-refoulement obligations to refugees under s. 115 of the IRPA - The Ontario Court of Appeal reviewed the relevant provisions of the Hague and Refugee Conventions - See paragraphs 46 to 57.

Aliens - Topic 4

Definitions and general principles - Children - A Hague application judge ordered a child's return to Mexico to be with her mother, her custodial parent - The child, now almost 14 years old, had been in Canada for 20 months and had previously been granted refugee status under the Immigration and Refugee Protection Act (IRPA) by reason of her mother's abuse - The father appealed the Hague application judge's decision - In addition, by Notice of Constitutional Question, he challenged the constitutional validity of s. 46 of the Children's Law Reform Act (CLRA), which incorporated the Hague Convention into Ontario's domestic law, on the ground that it conflicted with Canada's obligations to refugees under s. 115 of the IRPA - The Ontario Court of Appeal rejected the claim - The prohibition on removal under s. 115 did not apply to removals effected under entirely different statutory schemes, in this case under the Hague Convention's mandatory return process - On this basis, there was no operational conflict between s. 115 (IRPA) and s. 46 (CLRA) - Further, s. 46 did not frustrate the purpose of Canada's international non-refoulement obligations under s. 115 - However, a determination of refugee status had to be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of persecution or other serious harm when determining whether to grant an order of return respecting a refugee child - Canada's non-refoulement obligations and the import of a child's refugee status had to be considered under the art. 13(b) (grave risk of harm) and art. 20 (fundamental freedoms) exceptions to mandatory return under the Hague Convention - See paragraphs 62 to 83 and 87.

Aliens - Topic 4

Definitions and general principles - Children - A Hague application judge ordered a child's return to Mexico to be with her mother, her custodial parent - The child, now almost 14 years old, had been in Canada for 20 months and had previously been granted refugee status under the Immigration and Refugee Protection Act (IRPA) by reason of her mother's abuse - The father appealed the Hague application judge's decision - In addition, by Notice of Constitutional Question, he challenged the constitutional validity of s. 46 of the Children's Law Reform Act (CLRA), which incorporated the Hague Convention into Ontario's domestic law, on the ground that it conflicted with Canada's obligations to refugees under s. 115 of the IRPA - The Ontario Court of Appeal rejected the argument that in order to best reconcile s. 46 (CLRA) and s. 115 (IRPA), the mother should have applied to vacate or rescind the child's refugee status before proceeding with her Hague application - The Refugee Convention did not bind contracting states to any particular process "for either granting or withdrawing refugee status" - There was no need for the IRPA process to "trump" the Hague Convention regime provided that due weight was given to the non-refoulement obligation by fairly examining whether the risk of persecution persisted - Second, Hague Convention proceedings were intended to be summary in nature - There was no assurance that this would be achieved under the IRPA process for revocation of refugee status - Further, an aggrieved custodial parent of a refugee child could not apply directly to the Immigration and Refugee Board to vacate a child's refugee status - Under s. 109(1) of the IRPA, only the Minister of Citizenship and Immigration could do so, and the Minister's power was discretionary - See paragraphs 84 to 86.

Aliens - Topic 4

Definitions and general principles - Children - The Ontario Court of Appeal held that a refugee child's s. 7 Charter rights were engaged where the child's involuntary removal under the Hague Convention from Canada to a country where the child had already been found to face a risk of persecution was sought - As a result, the return of a refugee child under the Hague Convention had to be effected in accordance with fundamental justice principles - As a matter of procedural protection, these principles required a fair process that took account of various sources of international human rights law - See paragraphs 97 to 101.

Aliens - Topic 4

Definitions and general principles - Children - The Ontario Court of Appeal stated that "... the requirement that a Hague Convention judge consider a risk of persecution on a Hague application involving a refugee child accords with the requirements of the Convention on the Rights of the Child ('CRC'), ... to which Canada is a signatory. The jurisprudence of the Supreme Court of Canada consistently holds that the values reflected in international human rights law, and specifically those in the CRC, may help inform the contextual approach to statutory interpretation: ... The CRC provides that the best interests of the child shall be 'a primary consideration' in 'all actions concerning children' and, in some circumstances, may require the separation of the child from his or her parents: arts. 3 and 9. While the decision-maker should give the child's best interests 'substantial weight', they 'may be subordinated to other concerns in appropriate contexts' ..." - See paragraph 82.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - The Ontario Court of Appeal stated that "The centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated. It has been described as 'the cornerstone of the international refugee protection regime' and aims at preventing human rights violations ... Importantly, it is also complemented, and enlarged beyond its application to refugees, by international human rights law prohibitions on the removal of a person to a real risk of torture or other cruel, inhuman or degrading treatment or punishment or other forms of serious harm ... In Canada, the statutory codification of the principle of non-refoulement is found in s. 115(1) of the IRPA [Immigration and Refugee Protection Act]. That provision states: 'A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.' ... Also relevant is art. 32 of the Refugee Convention, which stipulates in part that contracting states, 'shall not expel a refugee lawfully in their territory save on grounds of national security or public order'. Article 32 applies to persons lawfully present in the country of refuge, including those recognized by the host country as refugees, while art. 33(1) is broader in scope, and applies to any person present in the country of refuge." - See paragraphs 55 to 57.

Aliens - Topic 1783

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Place of deportation (incl. deportation to place of torture (non-refoulement)) - [See first, second, third and fourth Aliens - Topic 4 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - [See fourth Aliens - Topic 4 ].

Constitutional Law - Topic 2655

Determination of validity of statutes or acts - Repugnancy - What constitutes a conflict or repugnancy - [See second Aliens - Topic 4 ].

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - [See second Aliens - Topic 4 ].

Constitutional Law - Topic 9951

Practice - General - [See Practice - Topic 9012 ].

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - In December 2008, a 12 year old girl travelled from Cancun, Mexico, to Toronto, Ontario, accompanied by her maternal grandmother and uncle, for a visit with her father and paternal aunt - The girl's mother, who lived in Cancun, had legal custody of the girl, while the father had access rights - The mother consented to the visit - During the visit, the grandmother and then the girl disclosed that the mother had abused the girl - The girl did not return to Mexico as arranged, but remained in Toronto with her father, her paternal aunt and her aunt's same-sex spouse (the aunts) - In May 2010, the girl's application under the Immigration and Refugee Protection Act for refugee status was granted by reason of her mother's abuse - Shortly thereafter, the father was denied refugee status in Canada and moved to Norway - After the girl had been living in Toronto with her aunts for about 18 months, the mother brought a Hague Convention application in Ontario for an order compelling her return to Mexico - The father and paternal aunt were served with the application, although the father was the only named respondent - The aunts, who had commenced a custody application, moved for an order adding them as parties and appointing counsel for the girl or an amicus curiae in the Hague Convention application - Their motion was denied - Before the time for the father's response to the Hague Convention application had expired, and without notice to the aunts or the girl, the mother arranged for a hearing date - The father claimed that he did not receive timely notice of the hearing date - The hearing proceeded uncontested, without the father's, aunts' or girl's participation - The application judge held that the girl, then almost 14 years old, was being wrongfully retained in Ontario and ordered her summary and immediate return to Mexico - She was removed from her school with police assistance, placed in her mother's care, and flown to Mexico despite her protests and without notice to her father or aunts - Although she informed the police and others present that she was a Convention refugee, she was denied permission to return home to retrieve her refugee papers - She was not allowed to communicate with anyone in any way - The Ontario Court of Appeal held that the application judge erred in ordering the child's return to Mexico - The child was denied procedural fairness - The application judge's failure to conduct the risk assessment mandated by the child's refugee status, the evidentiary record and her s. 7 Charter rights, was fatal to the return order - The applications judge erred in failing to consider exceptions to mandatory return - The court ordered that a new Hague Convention hearing be held and that at the new hearing: (1) the record before the Court of Appeal, including the fresh evidence received on consent, be placed before the Hague application judge; (2) the child be provided with a copy of all materials filed with the application judge; (3) the child be represented by the Office of the Children's Lawyer, or such other counsel as she determined; (4) the child be given an opportunity to present evidence, including in response to the mother's evidence; and (5) proper and timely notice of the new hearing date be provided to the father, child and aunts - See paragraphs 88 to 131.

Family Law - Topic 1965

Custody and access - Child abduction legislation - Return order - [See second, fourth and fifth Aliens - Topic 4 and Practice - Topic 9012 ].

Family Law - Topic 1967

Custody and access - Child abduction legislation - Enforcement (incl. extradition) - [See third Aliens - Topic 4 ].

Family Law - Topic 1968

Custody and access - Child abduction legislation - Evidence - [See first Family Law - Topic 1965 ].

Family Law - Topic 1977

Custody and access - Child abduction legislation - Appeals (incl. jurisdiction) - The Ontario Court of Appeal stated that "A Hague application judge's decision attracts considerable deference from this court. ... [A]ppellate review of a Hague decision is not a hearing de novo or an invitation to relitigate the matters determined on the application ... But, the deference usually accorded to a Hague ruling is displaced where the Hague application judge applied the wrong legal principles or made unreasonable findings of fact ... Moreover, standard of review considerations are irrelevant where a breach of natural justice or hearing unfairness is established." - See paragraph 88.

Family Law - Topic 1977

Custody and access - Child abduction legislation - Appeals (incl. jurisdiction) - A Hague application judge ordered a child's return to Mexico to be with her mother, her custodial parent - The child, almost 14 years old, had been in Canada for 20 months and had previously been granted refugee status under the Immigration and Refugee Protection Act by reason of her mother's abuse - The father appealed the Hague application judge's decision - At the outset of oral argument of the appeal, it emerged that the child was still in hiding in Mexico - The mother moved for a stay of the appeal pending the child's return to her in Cancun - The Ontario Court of Appeal denied the stay because it met none of the applicable requirements for the granting of a stay order - Moreover, and importantly, the interests of justice required that the issues raised on the appeal be determined promptly on the merits - See paragraph 129.

Family Law - Topic 1977

Custody and access - Child abduction legislation - Appeals (incl. jurisdiction) - [See Practice - Topic 9012 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - A Hague application judge ordered a child's return to Mexico to be with her mother, her custodial parent - The child, now almost 14 years old, had been in Canada for 20 months and had previously been granted refugee status under the Immigration and Refugee Protection Act (IRPA) by reason of her mother's abuse - The father appealed the Hague application judge's decision - In addition, by Notice of Constitutional Question, he challenged, inter alia, the constitutional validity of s. 46 of the Children's Law Reform Act, which incorporated the Hague Convention into Ontario's domestic law, on the ground that it conflicted with Canada's obligations to refugees under s. 115 of the IRPA - The Ontario Court of Appeal noted that ordinarily it would not hear constitutional issues first raised on appeal - However, this rule did not apply where, as here, the interests of justice required appellate determination of the constitutional issue - The Hague application proceeded on an uncontested basis, at least in part because it was heard before the time had expired within which the father was entitled to file a response and allegedly before he received timely notice of the hearing date - He had not deliberately refrained from raising the constitutional issue before the application judge - Moreover, the issue was fully argued before the Court of Appeal and no need to augment the record respecting the issue had been identified - Finally, and critically, the implications of the child's refugee status were key to whether her return to Mexico ought to have been ordered - See paragraphs 60 and 61.

Practice - Topic 9402

Appeals - Stay of appeal - When available - [See second Family Law - Topic 1977 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - [See fifth Aliens - Topic 4 ].

Cases Noticed:

Aulwes v. Mai (2002), 209 N.S.R.(2d) 248; 656 A.P.R. 248; 2002 NSCA 127, refd to. [para. 49].

Cannock v. Fleguel (2008), 242 O.A.C. 221 (C.A.), refd to. [para. 49].

Katsigiannis v. Kottick-Katsigiannis (2001), 144 O.A.C. 387; 55 O.R.(3d) 456 (C.A.), refd to. [para. 49].

Finizio v. Scoppio-Finizio (1999), 124 O.A.C. 308; 46 O.R.(3d) 226 (C.A.), refd to. [para. 49].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 49].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 49].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1, refd to [para. 53].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198, appld. [para. 54].

Maharaj v. Maharaj (2001), 150 O.A.C. 240 (C.A.), refd to. [para. 60].

Perez et al. v. Salvation Army et al. (1998), 115 O.A.C. 328; 42 O.R.(3d) 229 (C.A.), refd to. [para. 60].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207, appld. [para. 62].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 72].

Kovacs v. Kovacs et al., [2002] O.T.C. 287; 50 O.R.(3d) 671 (Sup. Ct.), refd to. [para. 73].

Kubera v. Kubera, [2008] B.C.T.C. Uned. 958; 60 R.F.L.(6th) 360 (S.C.), affd. in part (2010), 284 B.C.A.C. 224; 481 W.A.C. 224; 3 B.C.L.R.(5th) 121 (C.A.), refd to. [para. 79].

Toiber v. Toiber (2006), 208 O.A.C. 391 (C.A.), refd to. [para. 79].

Martinez v. Martinez-Jarquin, [1990] O.J. No. 1385 (Prov. Ct.), refd to. [para. 79].

S. (Abduction: Asylum Appeal), Re, [2002] EWCA Civ. 843, agreed with [para. 80].

J.H. v. F.A. et al. (2009), 265 O.A.C. 200 (C.A.), dist. [para. 81].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 82].

M.K.-W. v. M.S.W. (2004), 188 O.A.C. 376; 242 D.L.R.(4th) 385 (C.A.), refd to. [para. 88].

Jabbaz v. Mouammar (2003), 171 O.A.C. 102 (C.A.), refd to. [para. 88].

De Silva v. Pitts (2008), 232 O.A.C. 180 (C.A.), refd to. [para. 89].

Cornfield v. Cornfield, [2001] O.J. No. 5773 (C.A.), refd to. [para. 89].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 97].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 97].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1, refd to. [para. 97].

Ragupathy v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 490; 350 N.R. 137 (F.C.A.), refd to. [para. 100].

Ibrahim v. Girgis (2008), 232 O.A.C. 191 (C.A.), refd to. [para. 117].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 121].

Young v. Young (2003), 168 O.A.C. 186; 63 O.R.(3d) 112 (C.A.), refd to. [para. 121].

Lawson v. Lawson (2006), 214 O.A.C. 94; 81 O.R.(3d) 321 (C.A.), refd to. [para. 121].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74, refd to. [para. 121].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40, refd to. [para. 121].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 46 [para. 40].

Convention on the Civil Aspects of International Child Abduction (Hague Convention), Can. T.S. 1983, No. 35; 19 I.L.M. 1501, generally [para. 1].

Hague Convention - see Convention on the Civil Aspects of International Child Abduction.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 115(1) [para. 56].

Counsel:

Jeffery Wilson and Chelsea Hooper, for the respondent/appellant on appeal;

Philip M. Epstein, Q.C., Aaron Franks, Michael Zalev and Daniella Wald, for the applicant/respondent on appeal;

Lucy McSweeney, Katherine Kavassalis and Caterina Tempesta, for the Office of the Children's Lawyer;

Urszula Kaczmarczyk and Jocelyn Espejo Clarke, for the Attorney General of Canada;

Sean Hanley, for the Attorney General of Ontario;

Angus Grant, for the intervener, Canadian Council for Refugees;

Lorne Waldman, for the intervener, the United Nations High Commissioner for Refugees;

Jacqueline Swaisland, for the intervener, the Canadian Civil Liberties Association.

This appeal was heard on April 12 and 13, 2011, by Cronk, Gillese and MacFarland, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following reasons for judgment on June 2, 2011.